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"Death to Linux"? No, an IBM Countersuit Instead
Thursday, August 07 2003 @ 10:55 AM EDT

Stephen Shankland is reporting that IBM has filed a countersuit today. No details yet, but I'm working on it. Wait, someone just posted this in the comments section. The article says IBM says SCO is violating their patents and it stands on the GPL.

Oh my, oh my, it doesn't get any better than that:

"In a 45-page document filed late Wednesday, IBM argues that because SCO distributed a version of Linux under the open-source General Public License ( GPL ), it can't claim that Linux software is proprietary. IBM also argues that SCO software violates four IBM patents and that the company interfered with IBM's business by saying it had terminated IBM's right to ship a Unix product, AIX.

"IBM is seeking unspecified monetary damages and an injunction stopping SCO from shipping its software. The counterclaims came as part of Big Blue's answer to SCO's amended suit and were filed in the same federal district court in Utah."

Earlier, in writing about the license, I couldn't help mocking and horsing around. But now, I'm as serious as a heart attack.

It's clear that SCO's license is designed to kill Linux, the kernel, off completely. Whether that was the original plan, I don't know. Certainly, SCO has announced that they have a way to run GNU/Linux apps on their proprietary UNIX kernel. And I certainly hope someone in a lawsuit with them asks to see the code of their Linux Personality Kernel to check for GPL code. Don't ask for the one they said they just cleaned up to remove any IP issues. Ask for the one they released under the GPL originally. Oh, wait. The beauty of the GPL. Just look at an older release.

So, their plan means death to Linux; whether that was the intent or not, it would be the effect. No software distributor can sign this license and continue to distribute Linux. The only right anyone has to distribute GPL code is under the GPL, which by its terms requires that no conflicting license interfere with the four freedoms the GPL grants. SCO acknowledges this in their explanation page for the license:

"The license does not grant any rights to use SCO IP in source format, nor does it grant any distribution rights. It is therefore inadequate to cure infringements for distributors, or any entity that uses, modifies or distributes Linux source code."

So, the license does not solve the "Linux problem", except in the Hitlerian sense. They have no method for resolving their IP claims that would allow distributors to stay in business. And they are "surprised" Red Hat decided to sue instead? Is this how they started out? Maybe, but I don't think so. I think when they started, they thought there'd be some way to tax GPL software for their own benefit. Then they hit the GPL wall. By then they were in so deep, they didn't and don't know what else to do but keep going.

In the teleconference, McBride said this license might give impetus to a way for GPL coders to make some money off "their hard work, their proprietary work." Um, what? Proprietary what? The only money I see heading in anyone's direction in this plan is to SCO, not the Linux coders. If you can't modify or redistribute the code, I think it'll be a bit hard for coders to make any money from it. (It's also a fact that people already make money from their GPL work. As in Red Hat. Not that money is the dominant motivation for creating a free operating system, but making money from your code is not a violation of the GPL. And making money is certainly Red Hat's intention.)

Speaking of violating the GPL, this license by its terms is a violation, despite SCO's claims that you can have both.

Here's what I think may have happened. They started out with zero comprehension of the GPL. Actually, less, because they had a miscomprehension. After the last teleconference, where they first announced the licensing plan, they didn't call on me to ask a question, but they announced if anyone had any followup questions, we could email them. I did send them the following four questions, and I got an email back saying they would be replying. They have not done so to date, unless you count yesterday's teleconference remarks and the license terms as their answer to my first question. Here are the questions I sent:

"1. My understanding of the GPL is that no binary-only code can be released in conjunction with GPL code, when the two make up one program as opposed to being a merged aggegate. In other words, while it is acceptable to release two separate programs in the same distribution, one GPL and the other proprietary, any merging of the two codes into a single program would require that the proprietary code be released as GPL code and that source code be made available or that no distribution be made. Any distribution under any other terms than the GPL would be a violation of the copyrights of the GPL code. Can you please explain how it would be possible for you to offer a run-only license for binary code without violating the GPL? And if it isn't possible, are you not putting enterprise users in a bind, where they can't simultaneously be incompliance with you and with the GPL? Cf. http://www.gnu.org/licenses/gpl-faq.html#MereAggregation

"2. My understanding of copyright law is that registration permits money damages only from the date of registration, and that there is no prima facie assumption of the validity of the copyright if you register more than 5 years after first publication. Does this mean you will be looking for money damages only from the date of this announced registration? Or was it a copyright transfer or restoration of a copyright, as opposed to an initial registration? And if an accused infringer doesn't believe you have a valid copyright, and that is conceivable, what would your options then be?
Cf. http://www.copyright.gov/title17/92chap4.html#411
http://www.copyright.gov/title17/92chap4.html#412

"3. Is there any possibility that the code that you claim is infringing is actually code your company donated around 2000 or 2001 to IBM's AIX 5L open UNIX version? I noted that your web site, in discussing the project, mentioned NUMA and SMP, for example, as two aspects of that project. And can you please provide a list of what code you donated to that project, please?

"4. Since there is some doubt as to whether the code in question is infringing -- one analyst, for example, said he just doesn't know -- and since the code you showed was edited to remove dates, for example, how would a recipient of a claim of infringement be certain if the claim was valid, if you haven't provided proof certain?"

From my email of July 22, if not before, they certainly were on notice that it is contrary to the terms of the GPL to distribute GPL code with a conflicting license. However, they perhaps read the Mere Aggregation clause in the GPL and thought they had an out. They are mistaken. Here is an explantion of what a compatible license would entail:

"What does it mean to say a license is 'compatible with the GPL'. It means that the other license and the GNU GPL are compatible; you can combine code released under the other license with code released under the GNU GPL in one larger program.

"The GPL permits such a combination provided it is released under the GNU GPL. The other license is compatible with the GPL if it permits this too."

Here is a bit from the GPL FAQ page explaining a little more:

"What is the difference between 'mere aggregation' and 'combining two modules into one program'? Mere aggregation of two programs means putting them side by side on the same CD-ROM or hard disk. We use this term in the case where they are separate programs, not parts of a single program. In this case, if one of the programs is covered by the GPL, it has no effect on the other program.

"Combining two modules means connecting them together so that they form a single larger program. If either part is covered by the GPL, the whole combination must also be released under the GPL--if you can't, or won't, do that, you may not combine them.

"What constitutes combining two parts into one program? This is a legal question, which ultimately judges will decide. We believe that a proper criterion depends both on the mechanism of communication (exec, pipes, rpc, function calls within a shared address space, etc.) and the semantics of the communication (what kinds of information are interchanged).

"If the modules are included in the same executable file, they are definitely combined in one program. If modules are designed to run linked together in a shared address space, that almost surely means combining them into one program.

"By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs. So when they are used for communication, the modules normally are separate programs. But if the semantics of the communication are intimate enough, exchanging complex internal data structures, that too could be a basis to consider the two parts as combined into a larger program."

SCO has given its opinion that if you tried to remove the infringing code, you'd have nothing left to run. So are they licensing a separate program as a mere aggregation, just side-by-side on a CD? By their own testimony, they are not. So they are ipso facto in violation of the GPL. Do they cynically know this? I don't know. But I notice they pointedly say that they are not releasing any software with the license and that it covers only software the end user already has received. Perhaps they think this covers their behind. It's also possible they failed GPL summer school, I suppose.

Here's the best part of the GPL in the current situation:

"4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

Does that not say you can't sublicense and if you try, it's void? This isn't even touching on the issue of SCO releasing under the GPL itself. If it didn't, then they had no right to distribute their code with GPL code at all and so are in violation of the copyrights of the authors of the kernel. They distributed for years and continued after they knew about the "infringing" code:

"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

"6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License."

So, I would say they have painted themselves into a corner. And I see no way out for them. The GPL really is their tar baby. No matter how they try to attack it, they just get more and more stuck. No wonder they sounded so jumpy and scattered at the teleconference and their licensing pages are written with so many errors of punctuation and grammar. It looks to me like somebody's nervous. I don't blame them.

Finally, SCO is having its lawyers look into whether their license is legal in Australia. Go, Aussie warriors! SCO says this has nothing to do with them. Heh heh.

Update: Here's the SCO statement, put out as a press release:

SCO Media Statement Re IBM Counterclaims

LINDON, Utah, Aug 07, 2003 -- We view IBM's counterclaim filing today as an effort to distract attention from its flawed Linux business model. It repeats the same unsubstantiated allegations made in Red Hat's filing earlier this week. If IBM were serious about addressing the real problems with Linux, it would offer full customer indemnification and move away from the GPL license. As the stakes continue to rise in the Linux battles, it becomes increasingly clear that the core issue is bigger than SCO (Nasdaq: SCOX), Red Hat, or even IBM. The core issue is about the value of intellectual property in an Internet age. In a strange alliance, IBM and the Free Software Foundation have lined up on the same side of this argument in support of the GPL. IBM urges its customers to use non- warranted, unprotected software. This software violates SCO's intellectual property rights in UNIX, and fails to give comfort to customers going forward in use of Linux. If IBM wants customers to accept the GPL risk, it should indemnify them against that risk. The continuing refusal to provide customer indemnification is IBM's truest measure of belief in its recently filed claims.

Regarding Patent Accusations

SCO has shipped these products for many years, in some cases for nearly two decades, and this is the first time that IBM has ever raised an issue about patent infringement in these products.

Furthermore, these claims were not raised in IBM's original answer.

SCO reiterates its position that it intends to defend its intellectual property rights. SCO will remain on course to require customers to license infringing Linux implementations as a condition of further use. This is the best and clearest course for customers to minimize Linux problems.


  


"Death to Linux"? No, an IBM Countersuit Instead | 32 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 08:49 AM EDT
http://zdnet.com.com/2100-1 104_2-5060965.html
anonymous

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 08:52 AM EDT
From that ZDNet article: "IBM also argues that SCO software violates four IBM patents..."

If there is one company on earth I would not want to be on the other side of a patent issue on, it's IBM. These guys are patent experts.


Nick

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:04 AM EDT
From the Australian IT article that pj linked:

"SCO has invested hundreds of millions in the development of UNIX and is therefore entitled to a reasonable return on its investment. SCO believes that major portions of the 2.4 and later versions of the Linux kernel are unauthorised derivative works of SCO UNIX IP," it said.

The cheeky thugs at the SCO Group haven't invested in the development of UNIX(tm).


D.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:16 AM EDT
After reading the article I link in, let me know if I get this correct (please excuse my over-simplification if that is the case).

People are apparently not doubting that there is UNIX System 5 code in Linux (at least the reviewer in the article). However, the code was put in place by SCO and released under GPL. Therefore, they (SCO) should have no legal rights to it anymore. But yet, that is their claim?

Another point, if a list of SCO code duplications was ever presented to the public by SCO, the community would remove the code and SCO lawsuit would pretty much be over (since the code wouldn't be in the baseline anymore, right?)

Thanks, Jeff


Jeff

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:17 AM EDT
I placed the link in my ID box sorry, just click on my name in the posting above or the URL is below: http://www.inter netnews.com/dev-news/article.php/2245911
Jeff

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:24 AM EDT
Jeff,

The thugs are claiming that *all* of GNU/Linux are ripoffs of SysV. Which is a false claim.

SysV was an effort to combine AT&T Unix(tm) and BSDr4.x

This has been litigated before and the commercial side failed to get an injunction, and folded their hand.


D.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:32 AM EDT
Grrrrr...can anyone find a copy of the counterclaims? I'm going nuts! Thanks.
M. Danielson

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:43 AM EDT
pj will be posting links and her usual pithy analsys asap, I'm sure... style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">D.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:47 AM EDT
I'm interested in something else. I know this isn't properly GPLish, but couldn't the various kernel copyright holders sue SCO for their piece of the pie? Certainly if I've put foo into the kernel, and SCO never built foo, I should get paid for it, right?

Suppose I license my bit of code to SCO for...

{puts finger near lip}

1399 dollars.

I seems like the million dollars RedHat has made available to developers who are having IP troubles with SCO is a backhanded way of encouraging such behavior.

Let a few kernel developers sue SCO for their piece of the license money, and SCO stock will drop real fast!

Alex

--

I didn't attend Evil Medical School, but I'm a gifted amateur.


Alex Roston

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:00 AM EDT
Two more things,

Has anyone looked at SCO's stock price today? I notice that they've gone down $1.43 today so far, with two more hours to go before the closing bell.

HEH. Bastards.

Second, I noticed that the for which IBM is suing SCO are as follows, (per ZDnet):

"a data compression technique, a method of navigating among program menus using options arranged in a graphical tree, a method for verifying that an electronic message was received and a method for monitoring computing systems linked in a cluster."

The first three patents are VERY, VERY basic. I think this is a message all by itself. "Hey SCO," says IBM, "we didn't have to reach far for those, but if you don't come to the table soon, we can reach much, much deeper..."

Alex


Alex Roston

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:02 AM EDT
Hi all,

I have a request in to IBM for the document. I'll post it as soon as I get it. If they don't provide, it'll eventually be posted on the Utah court web site. This is when the Pacer membership comes in handy, as I explained a few days back. It normally takes a day or two for Pacer to get it.

If anyone gets it sooner, do post.


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:17 AM EDT
As always, IANAL, however, it sounds to me like sco's only possible defence
against this is to contest the validity of the GPL itself. If they succeed,
we're in for a world of hurt. If they fail, the GPL will finally have a legal
precedent!
Joe Linux User

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:24 AM EDT
I was really shocked to read the following in a Slashdot comment on the SCO cases:

I'm waiting for a pacer account to show up in the mail so I can read the counter-claim online. If anyone already has a pacer account, can they download the file and post it someplace where we can all see it?

Can someone confirm that I dream?


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:28 AM EDT
More info:

http://news.com.com/210 0-1016-5060965.html?tag=nl

http://www.eweek.com/ article2/0,3959,1212326,00.asp


Bob

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:33 AM EDT
I used to use a SYS360 machine when I was a younger (lighter by 100lbs) engineer. I never thought I would be saying, GO GO BIG BLUE!

When they get the big blue lawyers going on something, somebody is going to get an eye poked out.

It's like when you see a wrestling match, and the evil twins are beating the honest wholesome pair up, and out from the locker room, comes an angry Capt. Badass, and his pal Corp. Punishment with chairs in their hands ready to come to the rescue!

You can hear that sucking sound on Yahoo finance when you type in SCOX. So far, on a DOW up day they have lost 11% of the value, and I expect worse.

Here is my question, would this action by IBM spur on action in a criminal court? Would not a securities investigation be triggered by a bad SCO judgement?

IANAL, actually, TGIANAL.


Fooboy

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 11:06 AM EDT
fooboy, Love the Corp. Punishment. Thanks for a good laugh.
pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 11:13 AM EDT
This is a little off topic, but I propose yet another legal strategy.

Hundreds if USERS of Linux simply send a certified letter to SCO certifying that they are running Linux without an SCO license and that they do not intend to obtain one.

SCO then will be required to sue hundreds if not thousands of Linux users in hundreds of different jurisdictions, most likely in small claims court.

SCO HAS to sue everyone or no-one. To do otherwise makes them selective, capricious, arbitrary etc. and that doesn't fly in court.

SCO cannot sit around and wait to sue without waiving certain rights to sue. They either have to enforce the license or it becomes unenforceable.

Users can defend themselves pro se with assistance from an anticipated pj and friends website.

The maximum risk to users would be the $699 license fee. There would be no damages if users have not shared or distributed their own copy. (unlike the napster case)

The best part is that SCO has to produce the code and prove infringement even in small claims court which proceedings, I might add, is still a matter of public record.

Voila, the code becomes public or the license becomes unenforceable. If the former, the code becomes excised and replaced and everyone sends a new letter to SCO indicating that they are no longer using tainted Linux so don't bother to sue or seek a license.

Just thinking out loud here.

Later,


sn

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 11:14 AM EDT
The above strategy also forces the issue front and center well before '05.
sn

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 11:17 AM EDT
Hmm. Send the letters Recorded Delivery, so they have to sign for each one
individually. That'll give them writers cramp too! ;-)
Cambo

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 11:20 AM EDT
Snookered, there's on whatif... What if SCO decides to sue noone?
The SCO salesdroid I had on the phone wouldn't say that I needed a license, even when I tried to put the words into his mouth. (There is a longer report on another comment page.)
MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 11:54 AM EDT
Everyone: My opinion is you should ignore snookered's advice. He is not a
lawyer and has no business giving out legal advice. Ignore him. Never make any
move in a legal area with proper legal advice from your own attorney, and do not
listen to any legal advice from anyone who is not an attorney.
pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 11:59 AM EDT
Let me try again to say this. I am so angry, I can barely type: Do not follow
snookered's advice. He is not a lawyer and has no business giving out legal
advice. Ignore him. Never make any move in a legal area without proper legal
advice from your own attorney. And never listen or follow "legal" advice from
anyone who is not an attorney. And use your own common sense. Ask yourself,
what could the possible consequences of this course of action be? What might
his motives be? Where does he reside? Hint: Utah.
pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 12:15 PM EDT
"SysV was an effort to combine AT&T Unix(tm) and BSDr4.x

This has been litigated before and the commercial side failed to get an injunction, and folded their hand."

I've mentioned this before in another thread here, so I don't want to belabor the point too much. Here's my final thoughts on that matter:

USL v BSDI isn't settled, the SCO V IBM case is just the second installment in the series.

"The fact that UNIX was heterogeneous got the attention of the Defense Advanced Research Projects Agency (DARPA). DARPA was looking for a common base for its contractors. Bob Fabry worked on the political side of persuading DARPA to give Berkeley the contract, while Bill Joy handled the technical side. Berkeley did get the contract with DARPA and in late 1980 4BSD was released.

The contact with DARPA meant that Fabry could offer Joy a real job and a real salary, thus was the beginning of the Computer Systems Research Group (CSRG). During this time, 4BSD was finely tuned to the high performance of the VAX 750 and became known as 4.1BSD. "The 4.1 BSD system was taken back into Bell Labs to become the 8th Edition UNIX [Salus, 43]."

The work between 4.1BSD and 4.2BSD was the main reason that DARPA supported Berkeley UNIX. DARPA wanted enhancements, such as a file system that could use more than five percent of the bandwidth of the disk, networking based on TCP/IP and a new virtual memory system. "The networking implementation was general enough to communicate among diverse network facilities ranging from local networks, such as Ethernet and token rings, to long-haul networks, such as DARPA's ARPANET [Leffler, 7]." 4.2BSD was ready in the winter of 1983. "Joy is credited with creating 4.2 Berkeley Software Distribution (4.2BSD) version of UNIX, the version used most prevalently on minicomputers in high-tech firms and in universities [Rifkin, 52]." The complete text is here: http://www.rit.edu/~jmc3895/ucb _unix.html

I guess there are a couple of points that need to be made. First the government does not copyright code that it's own programmers create. That code is placed in the public domain, see for example NIST's expect - which many Unix systems use. Contractors who develop code for the government can copyright or patent their code, but are usually bound by their contracts to grant the government a paid-up perpetual license (see the Federal Aquisition Regulations).

USL V BSDI got bogged down at one point, when USL had to amend it's original complaint to name the Regents of the University of California.

As one of the documents in the case pointed out: "The principal issue in the case is USL's contention that the University of California, Berkeley is distributing software in violation of its license with AT&T. However, USL has not sued the University, nor have they stopped the University from distributing the software in question. Instead, the suit was filed against BSDI, a distributor of the University's software and a potential competitor." The settlement remains under seal, but Dennis Ritchie has made many of the other documents from the case available here: http://cm.bell-l abs.com/cm/cs/who/dmr/bsdi/bsdisuit.html

The case was settled before anyone could point out that the Berkeley CSRG was simply DARPA's contractor in a standard "government programming for hire" arrangement. It was also discovered that USL had misappropriated a lot of code from the "unauthorized" derivatives. The development of these unauthorized Unix derivatives and their distribution to other DARPA research institutions was done at DARPA's request and with their funding.

SCO is attemping to extort additional licensing fees from the government for it's use of Linux. They are relying on their DARPA/BSD tainted Unix System V source code. They stand a good chance of simply having it's copyright declared invalid or of standing accused of fraudulently obtaining the registration. The government almost certainly already has a perpetual license to use the portions that were misappropriated from the original BSD copyright holders.


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 02:23 PM EDT
And all this time I thought pj had a sense of humor. Was it something I said? I guess there's some things you just don't mess with although I fail to see how my post rises to the level of legal advice.

hmmmm.....maybe the highminded pj is just simply prejudiced against any and all living things from the state of Utah.


sn

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 02:59 PM EDT
snookered, pj has a sense of humour, but probably different from yours... I found your legal "strategy" significantly flawed too, if it was ment to be humourous, I completely missed the humour in it. The risks of sueing SCO are significantly higher that the $699 you mention.

I must admit there are some creatures in the state of Utah that i would love to touch with a well balanced piece of wood... It's the legal consequences that withold me from taking the plane over the ocean.


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 04:07 PM EDT
snookered: a perfect example was contained in the Timeline post from yesterdays
thread. When Timeline won their patent case on appeal they stated that they
would be asking treble damages from all the infringers (MS end users). They
explained that they were doing that because: they had been given ample notice,
but had simply chosen to follow Microsoft's legal advice instead consulting a
lawyer. Wouldn't it be unfortunate if something similar happened to any of us
for choosing to listen to IBM's advice?
Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 04:26 PM EDT
I am not a lawyer, so this is all just my ignorant uninformed opinion:

There is a beautiful symettry in the IBM countersuit

SCO says IBM's AIX license is revoked.

IBM responds, no it's not, here's why not, but we are seeking an injunction against ALL your major products for patent infringement.

SCO says IBM is infringing out "control rights" IP

IBM responds, no we're not, you're barred from making this claim, and by the way you're infringing our patents IP.

SCO says you owe us $3 billion

IBM responds, no we don't, you us money, and we'll let the courts decide just just how much.

Assume as a hypothetical, if IBM were to lose, IBM could just pay up or buy SCO. I believe that IBM *always* look after customers - it's a fact of life and 70+ years history. What's more IBM customers in business and government know this. So if IBM they lose, they would pay (or buy SCO) to protect their customers installations.

However assume as a hypothetical, if SCO were to lose, Unixware is dead and SCO might probably be bankrupt. What happens in 18 months to any SCO products that you buy now - if IBM wins on these issumes.

Also fighting the 4 patent claims by IBM is going to cost SCO a lot of money.

I agree IBM probably did not have to dig to find these 4 (and yes there's a message in there which SCO appear to have missed). IBM have thousands (I read somewhere 30,000) current patents. I also read when Microsoft and IBM were in a dispute about Windows and OS/2 license fees, and Gates thought he had the upper had, IBM showed them a stack (hundreds?) of patents IBM felt MS might infringe. Gates immediately conceded - and IBM got what it wanted (some change in the OS/2 deal I think).

SCO's press release today is in my opinion lame and hypocritical http://biz.yahoo.com/pr news/030807/lath091_1.html - they chide IBM for not immediately filing patent claims (IBM waited like 2-3 months), whereas them don't admit that SCO themselves waited 2-3 years before raising their particular issues. They harp on about protecting their IP, but ignore the GPL and IBM's patent IP. They also continue to attack IBM's business in the release - it's no business of SCO what terms IBM sells its products under.

Also on the patent issue, I have been led to believe that you must protect trade marks for them to be valid, you must moderately protect copyrights for them to be valid, but you can use patents whenever you like, regardless of previous enforcement. Can anybody confirm that my understanding is correct (or tell me if it's not)?

This is just my opinion, but I think SCO is finished, dead, kaput - and they just haven't hit the ground yet. It's checkmate in 2 moves, except black moved first

Black: SCO sues IBM White (or Blue?): IBM responds Black: SCO amends complaint White: IBM responds and countersues


quatermass

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 08:20 PM EDT
First Linux stuff, then IBM's Stuff and now today SCO stuff and Unix. Looks
like the only safe software is.......MS.
webster

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:02 PM EDT
David Boise must be disbared!
Aaron

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:26 PM EDT
Regards to the majoruty of this thread. The TROLLS have arrived. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">D.

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:44 PM EDT
Harlan,

Thank you for *not* quoting me in your post.

I have no idea if you were around in the original(UL v BSDI/Regents of the Universtiy of California) case, I was deposed by all parties concerned. They, all of them, decided to not use my statements in their case...


D.

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radiocomment
Authored by: Anonymous on Friday, August 08 2003 @ 11:47 AM EDT
D,

No. I was retired by the time of USL V. BSDI. In went into the US Air Force in 1971 and spent twenty years in various jobs related to Command and Control and Communications-Electronics. I had assignments where I served at The Air Force Data Systems Design Center at Gunther AFB Alabama and at The Air Force Communications Computer Programming Center at Tinker AFB Oklahoma. I also served on the Headquarters staff of Tactical Air Command and Air Force Communications Command as one of the functional area managers for Combat Communications. I am very familiar with the history surrounding Unix and the military's use of it. I've read and written quite a few of the fine print notes on the procurement contracts myself.


Harlan

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